The two dramatic law-changing decisions handed down by the Supreme Court on Friday are a profound reminder of how crucial presidential elections are for all of us. Like many of the Supreme Court's recent decisions, the decision was decided 6-3 with three justices appointed by President Trump in the majority. Like the overturning of Roe v. Wade and the recent expansion of gun rights, these decisions would never have happened if Hillary Clinton had won the presidential election in 2016 and appointed those three justices.
In other words, these decisions cannot be explained by precedent or interpretive methodology, but simply by conservative judges imposing conservative ideology and resulting in conservative outcomes.
In the case of City of Grants Pass v. Johnson, the court ruled that a municipality can make it a crime to sleep in public, even if there are not enough shelter beds. Grants Pass, Oregon, has a population of about 39,000 and a homeless population of about 600. The city enacted a series of ordinances that prohibited homeless people from sleeping on public land. The Ninth Circuit Court of Appeals declared these unconstitutional, concluding that “pursuant to the Eighth Amendment's prohibition on cruel and unusual punishment, the City of Grants Pass cannot enforce its anti-camping ordinance for the mere act of sleeping outdoors with minimal protection from the weather when there is no other place to go within the city.”
The Ninth Circuit was clearly right on law: punishing people for an activity over which they have no control — sleeping — violates the Eighth Amendment. It was also right on public policy: no city solves homelessness by criminally prosecuting the homeless. Imposing fines that homeless people cannot pay or putting them in jail for a short period of time does not provide them with permanent housing.
Justice Neil M. Gorsuch wrote the opinion overturning the 9th Circuit Court of Appeals. Justice Sonia Sotomayor, in her dissent, described the cruelty of making it a crime to sleep in public when there is no other place to sleep: “It is possible to recognize and balance the challenges facing local governments, the humanity and dignity of homeless people, and constitutional principles. Yet the majority has focused almost exclusively on the needs of local governments, forcing some of the most vulnerable people in our society to make the impossible choice between staying awake or facing arrest.”
Another decision handed down Friday was clearly emblematic of conservative thought, and concerned a more technical area of ​​law. In 1984, in the case Chevron USA v. Natural Resources Defense Council, the Supreme Court unanimously ruled that federal courts must defer to federal agencies when interpreting ambiguous federal laws. This means, for example, that when the Environmental Protection Agency sets rules under the Clean Air Act about how much of a particular pollutant can be released into the air, courts must defer to the agency's judgment. The decision, known as “Chevron deference,” is based on the idea that Congress cannot specifically legislate on every issue and deliberately leaves many details to the expertise of federal agencies. When it comes to particularly technical issues, the agencies, not the courts, are the experts.
But companies have long opposed deference to Chevron. They want to make it easier to challenge agency regulations in court. On Friday, the Supreme Court heard their pleas, explicitly rejecting the Chevron decision. Chief Justice John G. Roberts Jr. wrote in the court's opinion: “It is for the reviewing court, not the agency reviewing the act, to decide all questions of law and interpret statutory provisions.”
Just as the Roberts Court did when it overturned Roe v. Wade, it again did not give precedent any weight in striking down a 40-year-old ruling that had been a cornerstone of administrative law. The decision represents a major shift of power from federal agencies to the courts. As Justice Elena Kagan wrote in her dissent, the decision will cause “massive disruption” because deference to Chevron “is a vital part of modern government, supporting all kinds of regulatory efforts, including keeping our air and water clean, our food and medicine safe, and financial markets fair.”
Both decisions on Friday will have real effects on real people's lives. Homeless people will face criminal penalties for following a biological need to sleep in public when they have nowhere else to sleep. Far more likely, government agency rules meant to protect public health and safety will be overturned.
There is no explanation for these decisions found anywhere in law, only in who the justices on the Supreme Court are. As the nation turns its attention to the 2024 presidential election, and especially in light of Thursday night's debate, it's important to remember that a president's most lasting legacy will be who he appoints to the Supreme Court.
Erwin Chemerinsky is a contributing writer for Opinion magazine and dean of the University of California, Berkeley School of Law.
